Citation Nr: 1227884
Decision Date: 08/13/12 Archive Date: 08/21/12
DOCKET NO. 08-28 849 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio
THE ISSUES
1. Entitlement to service connection for the Veteran's cause of death.
2. Whether new and material evidence has been submitted sufficient to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), for accrued benefits purposes.
3. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, for accrued benefits purposes.
4. Entitlement to service connection for diabetes mellitus, type 2 (diabetes), for accrued benefits purposes.
REPRESENTATION
Appellant represented by: Barbara J. Cook, Attorney at Law
ATTORNEY FOR THE BOARD
J.A. Flynn, Associate Counsel
INTRODUCTION
The Veteran served on active duty in the United States Marine Corps from June 1972 to June 1975 and the United States Navy from June 1976 to August 1978. The Veteran died on May [redacted], 2004. The Appellant is the Veteran's daughter.
This case comes before the Board on appeal from two rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. An April 2005 rating decision denied service connection for the Veteran's cause of death, and an April 2010 rating decision denied service connection for diabetes and an acquired psychiatric disorder, both for accrued benefits purposes.
At the time of the Veteran's death, the Veteran had claims for service connection for diabetes and an acquired psychiatric disorder pending on appeal. The Board of Veterans' Appeals (Board) dismissed those appeals in August 2004. See generally Zevalkink v. Brown, 102 Fed. 3d 1236, 1243-44 (Fed. Cir. 1996) (holding that as a matter of law, appellants' claims do not survive their deaths). The Appellant filed claims for accrued benefits and service connection for the Veteran's cause of death within one year of his date of death.
This case was previously before the Board in February 2012, when it remanded the case for the issuance of a statement of the case (SOC) addressing the Appellant's claims for service connection for diabetes and an acquired psychiatric condition, both for accrued benefits purposes. The RO was also directed to solicit a medical opinion regarding the Veteran's cause of death if it granted service connection for the purpose of accrued benefits. The RO issued an SOC denying entitlement to accrued benefits, and it accordingly did not solicit a medical examination regarding the Veteran's cause of death. As an initial matter, when the Board's remand orders are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the instant case, the Board finds that there has been effective compliance with its remand instructions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance.)
In April 2012, the Appellant's representative submitted a letter concerning the claim for service connection for an acquired psychiatric condition without a waiver of initial review by the Agency of Original Jurisdiction (AOJ). The Board need not seek a waiver of AOJ review in the first instance because it is granting this claim for service connection, for the purpose of accrued benefits.
The Board notes that while the Veteran made a claim for service connection for a specific psychiatric disability, the Board has recharacterized the service connection claim to an acquired psychiatric disability, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (noting that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record).
The issue of service connection for the Veteran's cause of death is addressed in the REMAND portion of the decision below and is REMANDED to the RO.
FINDINGS OF FACT
1. In an August 1993 rating decision, the RO denied the Veteran's claim for service connection for an acquired psychiatric condition, and the Veteran did not timely file a notice of disagreement with this decision.
2. The evidence received since the August 1993 rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for an acquired psychiatric condition.
3. The competent evidence of record demonstrates that the Veteran has been diagnosed with PTSD under the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) criteria due to an in-service stressor.
4. The competent and credible evidence of record is against a finding that the Veteran was present on the landmass or the inland waters of the Republic of Vietnam (Vietnam) during service, and he is therefore not presumed to have been exposed to herbicides.
CONCLUSIONS OF LAW
1. The August 1993 rating decision denying service connection for an acquired psychiatric condition is final. 38 U.S.C. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1993).
2. New and material evidence has been received sufficient to reopen the claim of service connection for an acquired psychiatric condition, for accrued benefits purposes. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2011).
3. Service connection for PTSD for accrued benefits purposes is warranted. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.310 (2011).
4. Service connection for diabetes for accrued benefits purposes is not warranted. 38 U.S.C.A. §§ 1110, 5107, 5121 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.1000 (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA)
The Veteran's claim for service connection for an acquired psychiatric condition for accrued benefits purposes has been granted, as discussed below. As such, the Board finds that any error related to the VCAA on that claim is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2011); Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007).
With respect to the claim for service connection for diabetes, for accrued benefits purposes, the Board has given consideration to the VCAA, which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2011). The VCAA also defines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011).
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See id. at 486. Determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). In the instant case, a February 2009 letter notified the Appellant of all of the above elements. The Board finds that the notice provisions of the VCAA have been fulfilled, and that no further notice is necessary.
With respect to the duty to assist, consideration of a claim for accrued benefits is based on the evidence of record at the time of the veteran's death. See Zevalkink v. Brown, 6 Vet. App. 483, 489- 90 (1994). Hence, no further assistance on the part of VA is required to develop the record.
The Appellant declined the opportunity to present testimony before a Veterans Law Judge. Thus, the duties to notify and assist have been met, and the Board will proceed to adjudicate the Appellant's claims for accrued benefits.
Eligibility for Accrued Benefits
Certain individuals, including a veteran's child, may be paid periodic monetary benefits to which a veteran was entitled at the time of his death under existing ratings or based on evidence in the file or constructively of record at the time of his death. See 38 U.S.C.A. § 5121(a) (West 2002); 38 C.F.R. § 3.1000 (2011). A claim for such benefits must be filed within one year of the Veteran's death. See 38 C.F.R. § 3.1000(a), (c) (2011).
The appellant in a claim for accrued benefits cannot furnish additional evidence that could be used to substantiate the claim, and VA cannot develop additional evidence to substantiate a claim of entitlement to accrued benefits. Evidence in the file at the date of death means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death. See 38 C.F.R. § 3.1000(d)(4) (2011); Hayes v. Brown, 4 Vet. App. 353 (1993).
For the purpose of determining entitlement to accrued benefits, the term "child" means a person who is unmarried and (1) who is under the age of 18 years; (2) who, before attaining the age of 18 years, became permanently incapable of self-support, or (3) who, after attaining the age of 18 years and until completion of education or training (but not after obtaining the age of 23 years), is pursuing a course of instruction at an approved educational institution. See 38 U.S.C.A. § 101(4)(A) (West 2002); 38 C.F.R. § 3.57, 3.1000 (2011).
In the instant case, the Appellant was 22 years old and unmarried both on the date of the Veteran's death and on the date that she filed her claim for benefits. The Appellant provided an unofficial educational transcript from a community college indicating that she was pursuing a course of instruction at that time. The Appellant is therefore eligible to pursue a claim for accrued benefits, and the Board will proceed to adjudicate her claims.
New and Material Evidence, for Accrued Benefits Purposes
In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2011). A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. See 38 U.S.C.A. § 5108 (West 2002). If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. See id.; see also Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998).
New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and it must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156 (2011); Smith v. West, 12 Vet. App. 312, 314 (1999) (noting that if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened.)
To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For the purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (noting that when determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of a witness.)
If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for his claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999); but see 38 U.S.C.A. § 5103A (eliminating the concept of a well-grounded claim).
Regardless of what the RO has done, the Board must address the question of whether new and material evidence has been received to reopen the claim because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In other words, the Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).
Service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2011). In order to establish service connection for the Veteran's claimed disorder on a direct basis, there must be evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999).
In the instant case, the Veteran's claim for service connection for an acquired psychiatric condition was last finally denied in an August 1993 rating decision, which found that the record contained, with regard to the claim for service connection for PTSD, no diagnosis or in-service stressor, and with regard to the claim for service connection for an acquired psychiatric condition, no in-service treatment or treatment soon after his separation from service. The Veteran did not appeal this decision, and the rating decision became final. See 38 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1993). The evidence under consideration at the time of the August 1993 denial included the Veteran's lay statements, VA medical treatment records, and the Veteran's service treatment records and personnel records.
The Board must now determine if new and material evidence has been submitted since the time of the August 1993 rating decision. See 38 U.S.C.A. § 5108 (West 2002). The evidence added to the record after the August 1993 decision includes, in pertinent part, additional medical evidence, such as VA treatment records for an acquired psychiatric condition and a May 2003 private psychological report positing a relationship between the Veteran's acquired psychiatric condition and his military service. This evidence is new because all of these records post-date the August 1993 rating decision; by definition, none of these records had been submitted to VA at the time of the last final decision.
Regarding the materiality of the newly submitted evidence, the Veteran's claim for service connection for an acquired psychiatric condition was last finally denied because the evidence of record did not demonstrate a diagnosis of PTSD, confirmed stressors, or a relationship between his acquired psychiatric condition and active duty military service. The new medical evidence suggesting that the Veteran's acquired psychiatric condition could be related to service relates to unestablished facts necessary to substantiate the claim. The credibility of the newly submitted evidence is presumed in determining whether or not to reopen a claim. See Justus v. Principi, 3 Vet. App. 510 (1992). Thus, this evidence raises a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a) (2011). Accordingly, the additional evidence is also material. As new and material evidence has been received, the claim for service connection for an acquired psychiatric condition, for accrued benefits purposes, is reopened.
Acquired Psychiatric Condition, for Accrued Benefits Purposes
The Appellant alleges that the Veteran suffered from an acquired psychiatric condition, to include PTSD, as a result of an in-service stressor.
Service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2011). In the absence of medical evidence or persuasive probative lay evidence showing the Veteran has the condition alleged, service connection is not warranted. In order for a claimant to be granted service connection for a claimed disability, there must be evidence of a current disability. See Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (noting that service connection is limited to cases in which the service incident has resulted in a disability, and in the absence of proof of a present disability, there can be no valid claim); see also Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992) (stating that service connection claim must be accompanied by evidence establishing the claimant currently has the claimed disability).
Service connection may also be granted for any disease initially diagnosed after service when the evidence establishes that the disease was incurred in service. See 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2011); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2011).
In order to prevail on the issue of service connection there must be: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence, of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). More specifically, service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with VA regulations; (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f) (2011).
The evidence required to establish a claimed in-service stressor depends on the nature of both the stressor and the Veteran's service. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, the veteran's lay statements alone may establish occurrence of the claimed in-service stressor, in the absence of clear and convincing evidence to the contrary, as long as the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993).
Even without combat participation, if the veteran's claimed stressor is related to "fear of hostile military or terrorist activity," and a VA psychiatrist or psychologist, or contract equivalent, confirms that the claimed stressor is adequate to support a diagnosis of PTSD, and the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304 (f)(3) (2011).
"Fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. See 38 C.F.R. § 3.304 (f)(3) (2011).
If the claimed stressor does not involve either combat or the fear of hostile military or terrorist activity, then the Veteran's claimed stressors must be corroborated by evidence other than the claimant's own testimony or the diagnosis of PTSD itself. See 38 C.F.R. § 3.304(f) (2011); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The occurrence of an event alleged as the stressor upon which a PTSD diagnosis is based (as opposed to the sufficiency of the alleged event to cause PTSD) is an adjudicative determination, not a medical determination. See Zarycki v. Brown, 6 Vet. App. 91, 97-98 (1993).
Once the occurrence of a claimed stressor has been verified, however, the veteran's personal exposure to the event may be inferred from the evidence of record. A veteran need not substantiate his actual presence during the stressor event; the fact that the veteran was assigned to and stationed with a unit that was present while such an event occurred strongly suggests that the veteran was, in fact, exposed to the stressor event. See Pentecost v. Principi, 16 Vet. App. 124 (2002); Suozzi v. Brown, 10 Vet. App. 307 (1997).
Turning now to the facts in the instant case, the Appellant contends that the Veteran had an acquired psychiatric condition, to include PTSD, that was related to stressors that he encountered in service. As noted above, any claim for service connection first requires the presence of a currently-diagnosed disability. The Veteran's medical records indicate a number of diagnoses, including dysthymia, various personality disorders, polysubstance abuse, schizophrenia, schizoaffective disorder, manic disorder, PTSD, and major depression. The first Hickson element, evidence of a current disability, is satisfied.
With regard to the second element required to support a claim for service connection for PTSD, a link between the Veteran's current symptoms and an in-service stressor, a May 2003 letter from a private psychiatrist, among other records, links the Veteran's PTSD to two stressful events in service, specifically watching "his buddies killed when a helicopter blew up in 1973" and again in 1977 "watch[ing] others get blown up in a helicopter crash." The record therefore contains a link between the Veteran's symptoms and the alleged in-service stressor.
With regard to the third element required to support a claim for PTSD, the presence of an in-service stressor, the Board first concludes that the claimed stressors are not related to combat. The Veteran's personnel and service medical records are negative for any indication that the Veteran participated in combat. The only listed decorations, medals, badges, commendations, citations, or campaign ribbons from his first period of service are the National Defense Service Medal, the Good Conduct Medal, and the Rifle Marksmanship Badge, and from his second period of service, the Navy "E" Ribbon. None of these decorations imply that the Veteran was involved in combat. Furthermore, the Veteran's DD-214 from his first period of service states that the Veteran had no service in Indochina or Korea.
The Veteran alleged on occasion that he participated in combat. In a November 1990 psychological profile, the Veteran said that he experienced combat in Southeast Asia. In January 2004, the Veteran's representative observed that the Veteran was attached to the 31st Marine Amphibious Unit (31st MAU) from March 1974 to January 1975. The Veteran's representative provided a history of the 31st MAU that indicated "from June 1971 until April 1975, the 31st MAU "conducted numerous deployments to the waters off Vietnam" and that the 31st MAU participated in combat exercises before April 1975. The Veteran's representative contended that this demonstrated that the Veteran participated in combat.
The Board disagrees. The Veteran never contended that his DD-214, which bears no indication that he engaged in combat, was inaccurate. Despite an indication that parts of the Veteran's unit may have participated in combat exercises before April 1975, this does not demonstrate that the Veteran individually participated in such combat, and indeed, the evidence of record, including the Veteran's separation documents, is against such a finding. The Board, therefore, finds that the Veteran did not participate in combat and is not entitled to the combat presumption liberalizing the evidence needed to demonstrate a claimed stressor.
Furthermore, the Veteran's claimed stressor is not based on the Veteran's fear of hostile military activity. Instead, the Veteran alleged that his PTSD stressor was witnessing helicopters crash during training exercises. The liberalizing criteria discussed above that do not require a verified stressor, therefore, do not apply. See 38 C.F.R. §3.304(f)(3) (2011). The record, therefore, must contain credible supporting evidence that the Veteran's claimed in-service stressor actually occurred.
The Veteran's reported stressors generally remained consistent over time; he claimed to have witnessed fatal helicopter accidents in 1973 and 1977, and he additionally claimed to have handled dead bodies as a result of such accidents. In October 1992, the Veteran stated that in 1977, while stationed off the coast of the Philippines, and after a training accident occurred involving helicopters, the Veteran was "flown to where the helicopters crashed" and "had the job of putting the bodies and parts in body bags and taking them back to the ship and freezing the bodies." In a December 1993 VA psychiatric examination, the Veteran stated that in 1977 or 1978, he had to "bag" the bodies of friends who died in a helicopter crash.
In July 1998, the Veteran stated to a VA clinician that he "witnessed a helicopter crash in which two of his close friends were killed," but "he survived the crash." The Veteran otherwise "saw [a] lot of people killed" in the war. In November 1998, the Veteran stated that he witnessed a helicopter crash that required him to "bag and transport" his friends' bodies to the freezer of the ship.
In July 2001, the Veteran's representative provided a newspaper article entitled "24 Die as U.S. Copter Crashes in Philippines," which described the October 1977 crash of a United States Marine Corps helicopter on Mindoro Island. In February 2002, the Veteran's representative provided a December 1977 report from the United States Marine Corps concerning a fatal helicopter accident that occurred in October 1977. The helicopter in question belonged to Marine Heavy Helicopter Squadron 462 (HMH-462), Marine Aircraft Group 36, and the accident occurred at Mindoro Island, Republic of the Philippines. A rescue party was formed at the scene of the wreck, and members of this party identified and treated all of the wounded, and bodies of the dead were tagged and put into body bags. United States Marines on the island hacked out a landing zone for a helicopter, and "by late afternoon all of the injured were evacuated to Mamburao." Eighteen of the dead were evacuated by night fall to Mamburao where the bodies were staged, awaiting transportation to Clark Air Force Base Mortuary.
In August 2002, the Veteran's representative submitted an excerpt from the deck log of the USS New Orleans, dated October 21, 1977. It states that a CH-53 helicopter crashed and burned at Mindoro Island. A 1030 notation indicates that the aircraft was "engulfed in flames." The notation indicates that the aircraft was assigned to HMH-462, and that a CH-46 helicopter was on scene. A 1312 notation indicates "inbound medevac from helo crash one casualty aboard." A 1425 notation indicated that an explosive ordinance disposal team had been inserted into the accident site. It noted "all casualties being transported to Mamburao Air Field for further transport to . . . Subic Naval Hospital." There are no other relevant references to the accident in the deck log.
In a May 2003 private psychological evaluation, the Veteran indicated that he witnessed a helicopter crash in 1977. Also in May 2003, the Veteran's representative stated the Veteran's primary stressor was his involvement in a training exercise off the coast of the Philippines in 1977, in which "24 out of 33 individuals were killed." In October 2003, the Veteran's representative stated that the Veteran "witnessed [a helicopter crash]" from the USS New Orleans.
Turning to an analysis of the Veteran's claimed stressor, the Board first notes that the Veteran's representative has argued on a number of occasions that the Veteran's stressor has been "confirmed." The question of whether the veteran was exposed to a stressor in service is a factual one, however, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. See Wood v. Derwinski, 1 Vet. App. 190 (1991). In other words, whether a claimed stressor is of sufficient gravity to cause or support a diagnosis of PTSD is medical in nature; whether a claimed stressor actually occurred is a question of fact for the adjudicator, which in this case is the Board.
The Veteran was aboard the USS New Orleans in October 1977. It is undisputed that a fatal helicopter crash occurred on Mindoro Island in October 1977, and the partial excerpt from the deck log of the USS New Orleans indicated that the vessel received at least one casualty from the helicopter accident, and the deck log suggests that the vessel may have transported casualties to Mamburao Air Field. With regard to the question of whether the Veteran individually witnessed this event or individually handled the bodies of the dead, the Board is mindful of the Court's holdings in Pentecost and Principi, which indicate that the Board errs when it interprets the stressor corroboration requirement too narrowly by requiring a Veteran to corroborate his actual participation with a confirmed event. The Veteran's vessel was confirmedly in close proximity to the accident and received casualties from the accident. It is conceivable that the Veteran could have, as he claimed with some consistency through the years, witnessed the crash and its aftermath from the USS New Orleans.
The Board, therefore, finds that all of the required elements for a service connection claim for PTSD for accrued purposes have been met, and the claim of entitlement to service connection for PTSD for accrued purposes is granted. See 38 C.F.R. § 3.304(f) (2011).
Diabetes, for Accrued Benefits Purposes
The Appellant contends that service connection for diabetes for accrued benefits purposes is warranted. The Board reiterates that, as an analysis of entitlement to accrued benefits, the following discussion will consider only evidence in VA's possession at the time of the Veteran's death. See 38 U.S.C.A. § 5121(a) (West 2002); 38 C.F.R. § 3.1000(a) (2011).
Certain diseases associated with exposure to herbicide agents used in support of military operations in Vietnam during the Vietnam Era (January 9, 1962 to May 7, 1975) are considered to have been incurred in service. See 38 U.S.C.A. § 1116(a)(1) (West 2002); 38 C.F.R. § 3.307(a)(6) (2011). Diabetes mellitus is one such disease. See 38 U.S.C.A. § 1116(a)(2) (West 2002); 38 C.F.R. § 3.309(e) (2011). In order to establish presumptive service connection to diabetes, the presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more at any time after service. See 38 C.F.R. § 3.307(a)(6)(ii) (2011). This presumption additionally requires that a veteran must have set foot on the landmass of Vietnam or served on its inland waters during the Vietnam era. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). While qualifying service in Vietnam includes service on its inland waterways, it does not include service on deep-water naval vessels in Vietnam's offshore waters. See 38 C.F.R. § 3.307(a)(6)(iii) (2011); Haas v. Peak, 525 F.3d 1168; 66 Fed. Reg. 23, 166; see also VAOPGCPREC 27-97 (holding that mere service on a deep-water naval vessel in waters offshore of Vietnam is not qualifying service in Vietnam).
Turning to the facts in the instant case, the Veteran had been diagnosed with diabetes, which, as noted above, is a disease associated with herbicide exposure. The Veteran served during the Vietnam Era. The Veteran is therefore entitled to presumptive service connection if it is established that he served on the landmass of Vietnam or in its inland waters.
The Veteran's personnel records from the Vietnam Era do not indicate that the Veteran served in Vietnam. The Veteran was stationed in San Diego, California from June 1972 to October 1972; consistently, service treatment records from this period indicate that the Veteran received treatment in San Diego. The Veteran was stationed in Camp Pendleton, California from October 1972 to January 1974; consistent with this personnel record, the Veteran's service treatment records from this period indicate that the Veteran received treatment at Camp Pendleton during this period.
The Veteran had overseas duty beginning in January 1974. A May 1974 service treatment record indicates that the Veteran was treated on board the USS New Orleans, a vessel that, the Board notes, ceased operations in Vietnam on April 17, 1973. A service treatment record from September 1974 indicates that the Veteran was on board the USS Tripoli at that time, which was stationed at the U.S. Naval Base Subic Bay, located in Olongapo, Zambales, Philippines. A March 1975 service treatment records indicate that the Veteran was stationed at Cherry Point, North Carolina at that time.
Consistent with the above findings, the Veteran's pertinent DD-214 states that the Veteran served on active duty from June 1972 to June 1975, with 1 year and 22 days spent in foreign and/or sea service. The only listed decorations, medals, badges, commendations, citations, or campaign ribbons are as follows: the National Defense Service Medal, the Good Conduct Medal, and the Rifle Marksmanship Badge. The DD-214 states that the Veteran had no service in Indochina or Korea.
Before his death in 2004, the Veteran claimed on several occasions that he served in Vietnam. For example, in a December 1986 treatment report, the Veteran said that he served in Vietnam for 13 months. In a November 1990 psychological profile, the Veteran said that he experienced combat in Southeast Asia. In a March 1993 psychological assessment, the Veteran said that he served in both Vietnam and Cambodia. In his 2003 claim, the Veteran stated that he served in Vietnam in 1973 and 1974.
Upon review of the evidence of record, the Board acknowledges that the Veteran is competent to give evidence regarding what he experienced while in service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds that despite the competency of the Veteran's observations, the Board does not find such allegations to be credible in the face of other evidence of record. Neither the Veteran's personnel files, nor his service treatment records, nor his DD-214 indicate that the Veteran served in Vietnam. Nowhere in the Veteran's personnel files is Vietnam service mentioned or alluded to. Despite repeated requests from VA for specific information, the Veteran's assertions were consistently unspecific as to both the times and locations of his purported service in Vietnam. He made no mention of the specific military bases that he visited, nor did he offer any specific descriptions of his experiences in Vietnam. The Board finds that this vagueness significantly diminishes the credibility of the Veteran's account of events, particularly given its inconsistency with the clear picture presented by the Veteran's personnel records, service treatment records, and DD-214.
The Board notes that despite the Veteran's lay contentions, there is additionally an absence of any badges, awards, commendations, or other notation on his DD-214 suggesting that he served in Vietnam. The Board has searched carefully through the personnel record for any suggestion that the Veteran served in Vietnam and has found nothing to corroborate the Veteran's lay testimony. Furthermore, the Veteran has not presented any "buddy statements" to corroborate his assertions. The Board generally finds the Veteran's account of serving in Vietnam to be implausible in the face of the weight of credible evidence to the contrary.
In light of the vagueness of the Veteran's assertions, the complete lack of any corroborating evidence, and the consistent evidence to the contrary in the Veteran's claims file, the Board affords no weight to the Veteran's allegations of service in Vietnam. The Board finds, therefore, that the Veteran did not set foot in Vietnam during the Vietnam Era, nor did he serve in its inland waters. The preponderance of the evidence of record does not establish that the Veteran was exposed to Agent Orange or any other qualifying herbicide as specified at 38 C.F.R. § 3.307(a)(6)(i). Accordingly, the Veteran is not entitled to presumptive service connection for diabetes.
In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the appellant when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the claim for service connection on a presumptive basis, for accrued benefits purposes. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
Even when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, however, the claim must be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994).
In order to establish service connection for diabetes on a direct basis, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999).
While neither the Veteran nor the Appellant have advanced a theory of entitlement to service connection for diabetes on a direct basis, in the interest of completeness, the Board will address such a claim. With respect to the first Hickson element, medical evidence of a current disability, it is undisputed that the Veteran suffered from diabetes. The first Hickson element is therefore satisfied.
With respect to the second Hickson element, in-service incurrence or aggravation of a disease or injury, as discussed in detail above, the Veteran claimed that in-service exposure to herbicides caused his diabetes. The Veteran never claimed, nor does the evidence of record suggest, that the Veteran was diagnosed with or treated for diabetes in service. No competent evidence, including medical records, was presented diagnosing the Veteran with diabetes within the one-year presumptive period after service. See 38 C.F.R. §§ 3.307, 3.309 (2011). For the reasons stated above, the Board finds that the second Hickson element, in-service incurrence or aggravation of a disease or injury, is not satisfied, and the claim for service connection on a direct basis fails.
In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claims on a direct basis. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The benefit sought on appeal is accordingly denied.
ORDER
New and material evidence having been received, the claim for service connection for an acquired psychiatric condition, to include PTSD, for accrued benefits purposes, is reopened, and the appeal is allowed to this extent.
Service connection for an acquired psychiatric condition, to include PTSD, for accrued benefits purposes, is granted.
Service connection for diabetes, for accrued benefits purposes, is denied.
REMAND
Having granted the Appellant's claim for service connection for PTSD, for accrued benefits purposes, the claim of entitlement to service connection for the Veteran's cause of death must be remanded for additional evidentiary development. Although the Board regrets the additional delay, it is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Appellant's claim so that she is afforded every possible consideration.
The duty to assist includes obtaining a medical opinion when it is necessary to make a decision on the claim. With regard to cause of death claims, the duty to assist requirement under 38 U.S.C.A. § 5103(a) requires VA to make "reasonable efforts" to provide assistance if requested, to include obtaining a medical opinion. See 38 U.S.C.A. § 5103(a) (West 2002); DeLaRosa v. Peake, 515 F. 3d 1319 (Fed. Cir. 2008); Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008). The VA is excused from this obligation only when "no reasonable possibility exists that such assistance would aid in substantiating the claim." See 38 U.S.C.A. § 5103(a)(2) (West 2002).
To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service was either the principal or contributory cause of the Veteran's death. See 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2011). For a service-connected disability to be the principal cause of death, it must, singly or jointly with some other condition, be the cause of the Veteran's death or be etiologically related to it. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2011).
For a service-connected disability to be a contributory cause of death, the service-connected disability must contribute substantially or materially to the Veteran's death, combined to cause death, or aid or lend assistance to the production of death. It is not sufficient to show that the service-connected disability casually shared in producing death, but rather it must be shown that there was a causal connection. See 38 C.F.R. § 3.312(c)(1) (2010); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994).
Even in the case when the primary cause of death is by its very nature so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, VA must consider whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it is not generally reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. Id.
Alcohol abuse is the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user. Drug abuse is the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. See 38 C.F.R. § 3.301 (2011). Alcohol abuse and drug abuse, unless they are a secondary result of an organic disease or disability, are considered to be willful misconduct. See 38 C.F.R. § 3.301(c)(2), (3) (2011). The isolated and infrequent use of drugs by itself will not be considered willful misconduct. However, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. See 38 C.F.R. § 3.301(c)(3) (2011). No compensation shall be paid if a disability is the result of a veteran's own willful misconduct or abuse of alcohol or drugs. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2011).
The record reflects that the Veteran died on May 7, 2004. At the time of his death, the Veteran was not service connected for any conditions. This decision, however, grants service connection for PTSD for accrued benefits purposes. The immediate cause of the Veteran's death was pulmonary embolism due to alcohol withdrawal as a result of alcohol abuse. The record contains extensive documentation of the Veteran's treatment for polysubstance abuse during his lifetime.
The record contains no probative medical opinions regarding the possible relationship between the Veteran's cause of death and his service-connected PTSD, nor the possible relationship between the Veteran's PTSD and his polysubstance abuse. Given the Appellant's assertions of such a connection, the Board concludes that a VA opinion is required to address the possibility of a relationship between the Veteran's service-connected disabilities and his cause of death.
Accordingly, the case is REMANDED for the following actions:
1. The AMC should furnish the Appellant with complete VCAA notice pursuant to Hupp v. Nicholson. See 21 Vet. App. 342 (2007), with a copy to her representative. The VCAA notice should include (1) a statement of the disabilities for which the Veteran was service connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a death claim based on a previously service-connected disability; and (3) an explanation of the evidence and information required to substantiate a death claim based on a disability not yet service connected.
2. Obtain a VA opinion from a VA physician of appropriate expertise to address whether the cause of the Veteran's death is etiologically related to the Veteran's service-connected PTSD.
The claims file must be reviewed in conjunction with rendering the requested opinion and the examiner's report must reflect that the file was reviewed.
The physician is asked to express an opinion whether the Veteran's alcohol and drug use was secondarily related to his service-connected acquired psychiatric condition, or whether such substance abuse constituted willful misconduct.
The examiner is asked to express an opinion as to whether at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's pulmonary embolism which ultimately led to the Veteran's demise was either caused by or aggravated by his service-connected PTSD.
The examiner should state whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's service-connected PTSD caused, hastened, or substantially and materially contributed to the Veteran's death.
In all conclusions, the VA physician must identify and explain the medical basis or bases, with identification of the evidence of record and citation to any medical treatises or other evidence relied upon; the VA physician must also note and comment on the medical significance of the allegations submitted by the Appellant. A detailed rationale must be provided for all findings rendered. If a requested opinion cannot be rendered without resorting to speculation, the examiner should so indicate and must provide an explanation for the reason such opinion cannot be reached.
3. After undertaking any additional development that it deems to be necessary, readjudicate the Appellant's claim. If the benefits sought on appeal remain denied, the Appellant and her representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order.
The Appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs